Since the earliest days of the republic, termed-out or defeated American presidents headed out of the White House issue pardons to a chosen few (or, on occasion, a hefty stack) of accused or convicted applicants hoping to breathe free. The executive branch’s “get out of jail free” cards come out of the fading president’s deck thanks to the head of state’s forgiving nature or pressure to make final political statements before the commander in chief retires to private life.
To have an idea of whom President Joe Biden might select for his pardons before he leaves office on Jan. 20 to make room for Kamala Harris or Donald Trump, it helps to recall and analyze the controversial pardons of presidents past and to review the process that brings cases to the Oval Office.
With the election and administrative transition period rapidly approaching, Biden and his staff should be putting their finishing touches on a pardons list. The biggest question hovering over that selection is whether Hunter Biden will be first in line. On Sept. 5, the president’s son pleaded guilty without a plea agreement in a Los Angeles federal court to a nine-count indictment that included three felony and six misdemeanor tax offenses. That admission combined with a June 11 Wilmington, Delaware, federal conviction on three felony gun-related charges could add up to significant prison time.
During his appearance at last June’s G7 Summit following his son’s gun conviction, Joe Biden went on the record promising to let justice take its course without pardoning his offspring. However, there are more options than the binary possibility of yes or no on all-out legal forgiveness.
Graham G. Dodds is a professor in the Department of Political Science at Concordia University. The writer of 2021’s Mass Pardons in America: Rebellion, Presidential Amnesty, and Reconciliation from Columbia University Press calls attention to the relationship between pardon and clemency.
“There’s a distinct difference between a pardon, which wipes the slate clean as though the crime never happened, and clemency, which leaves on the books the finding of wrongdoing while mitigating the penalties,” Dodds said. “Obama gave clemency to Chelsea Manning, convicted of espionage via court-martial. The message was, ‘What she did was wrong, but she served a couple of years. She’s been through a lot. We’ll let her out of jail, but her conviction will remain part of her record.’ That’s an option that could keep Hunter out of prison.”
On the other side of the aisle, Dodds points to former President George W. Bush granting clemency to Dick Cheney’s aide Scooter Libby.
Beyond analysis of the Hunter Biden situation, Dodds said he believes predicting whom a president might pardon can be a fool’s errand.
“There is a process for people who are seeking pardons, so one might think there would be some predictability,” he explained. “But the presidential pardon power is virtually unlimited, so presidents need not follow any process. As a result, there have been more than a few shocking pardons over the years.”
He cites Ronald Reagan’s pardon of NASCAR star Junior Johnson for his moonshine conviction, Bill Clinton’s pardon of Marc Rich, and Trump’s pardons of soldiers convicted of war crimes as some of the bigger recent surprises.
If Joe Biden decides to operate along party lines, the Democratic Party served up a collection of pardon candidates over recent years. Former Sen. Bob Menendez of New Jersey was convicted of 16 criminal charges in July following a two-month corruption trial. The president could pardon the longtime Democratic member of Congress before his late January sentencing.
New York City Mayor Eric Adams faces five federal charges, including wire fraud and bribery, related to his 2021 campaign. He might wait a long time for a pardon from the Biden administration after blaming his arrest on the president and vice president after he challenged them on immigration issues.
If those examples don’t appeal, former Rep. T.J. Cox, a California Democrat, faces 15 counts of wire fraud, 11 counts of money laundering, one count of financial fraud, and one count of campaign contribution fraud. Rep. Henry Cuellar (D-TX) and his wife were indicted on 14 criminal charges, including unlawful foreign influence, bribery, and money laundering.
According to professor Jeffrey Crouch of American University, the pardon tradition is as old as the presidency itself, but its zero-hour application — using the pardon or clemency powers when there remains little risk of meaningful political backlash — is a more modern issue.
“Several recent presidents from both political parties have granted clemency while protected from direct political consequences at the ballot box,” Crouch said. “George H.W. Bush pardoned Caspar Weinberger and five other Iran-Contra figures on Christmas Eve of 1992. Bill Clinton offered conditional clemency to members of the Fuerzas Armadas de Liberación Nacional Puertorriqueña, a Puerto Rican nationalist group, despite the opposition of federal agencies that weighed in against clemency.”
Crouch, the author of the 2009 book The Presidential Pardon Power from the University of Kansas Press, explained that most recent presidents made clemency grants based on applications submitted to the Pardon Attorney’s Office in the Department of Justice.
“After an investigation, the president receives a recommendation, which is usually followed [by the White House],” he said. “President Trump was an exception. He worked largely outside the Pardon Attorney’s Office as just 25 of his 238 clemency grants went through the usual process.”
With Trump mentioned, Dodds added what he considers an “amusing hypothetical.”
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“Suppose in the waning days of his presidency, Joe Biden were to pardon Trump ‘for all offenses against the United States which he has committed or may have committed or taken part in,’” Dodds said. “That’s the language Gerald Ford used in his pardon of Richard Nixon. Ford’s ostensible rationale was to avoid the spectacle of a former president facing criminal trials, something which Ford deemed so unseemly and undignified that it should be avoided.”
Noting America experienced exactly that half a century later, Dodds predicted Trump would most likely respond to such a pardon by insisting he did nothing wrong.
“Biden might then say, ‘Yeah, right, sure you didn’t.’”
John Lewinski, MFA, is a writer based in Milwaukee.
This article was originally published at www.washingtonexaminer.com
